Citation Nr: 21005552 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-19 603 DATE: February 1, 2021 ORDER Entitlement to service connection for peripheral neuropathy of right upper extremity, to include as a result of exposure to Agent Orange, is granted. Entitlement to service connection for peripheral neuropathy of left upper extremity, to include as a result of exposure to Agent Orange, is granted. Entitlement to service connection for peripheral neuropathy of right lower extremity, to include as a result of exposure to Agent Orange, is granted. Entitlement to service connection for peripheral neuropathy of left lower extremity, to include as a result of exposure to Agent Orange, is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise regarding whether the Veteran’s neuropathy of the right upper extremity is due to Agent Orange exposure. 2. The evidence is in relative equipoise regarding whether the Veteran’s neuropathy of the left upper extremity is due to Agent Orange exposure. 3. The evidence is in relative equipoise regarding whether the Veteran’s neuropathy of the right lower extremity is due to Agent Orange exposure. 4. The evidence is in relative equipoise regarding whether the Veteran’s neuropathy of the left lower extremity is due to Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity, to include Agent Orange, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include Agent Orange, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, to include Agent Orange, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, to include Agent Orange, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967. This appeal to the Board of Veteran’s Appeals (Board) arose from a November 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. The VLJ is no longer employed by the Board. In Legacy appeals such as this one, VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a September 2020 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and that he had the right to another hearing. He was notified that if he did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. In October 2020, the Veteran responded that another hearing was not desired. In April 2019, the Board remanded the claims for further evidentiary development. The case has returned to the Board for appellate consideration. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran contends that he developed neuropathy of his upper and lower extremities due to his service, specifically in Vietnam. With regard to a current disability, the Board notes that the Veteran has been diagnosed with peripheral neuropathy of upper and lower right and left extremities. See July 2020 VA examination. Regarding an in-service injury or event, the Veteran’s DD-214 Form indicates that the Veteran had foreign service in USARV and received Vietnam Service and Campaign medals. Therefore, the Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange. The Board acknowledges that there is no presumption of service connection for delayed-onset peripheral neuropathy due to exposure to herbicide agents. Still, the Veteran still may be entitled to service connection on a direct basis. Regarding whether there is a nexus between the Veteran’s neuropathy of upper and lower right and left neuropathy and his conceded Agent Orange exposure, the Veteran’s private doctor provided an opinion in June 2018. The private doctor noted that he had treated the Veteran for two years during which he treated him for his upper and lower right and left peripheral neuropathy. The private doctor opined that it was more likely than not that the Veteran’s peripheral neuropathy of all extremities was related to Agent Orange exposure. The private doctor reasoned that testing for other causes of peripheral neuropathy, such as diabetes, B12 deficiency, Lyme disease, and others were all negative. Thus, the private doctor reasoned that in the absence of any other cause, the Veteran’s upper and lower peripheral neuropathy was due to Agent Orange exposure in service. In the April 2019 remand, the Board requested another opinion on the basis that the private doctor did not discuss that the Veteran’s medical history revealed that he sustained four fractured vertebrae in his neck in 1997 after a car accident and that the Veteran’s symptoms did not manifest until recently. In a December 2019 VA opinion, the physician opined that it was less likely than not that the Veteran’s upper and lower peripheral neuropathy was related to service, to include Agent Orange exposure. The physician highlighted that the Veteran had been tested for and been found negative for common causes of peripheral neuropathy as noted by his private doctor. However, the physician cited to literature explaining that idiopathic neuropathy exists in 1 percent of the general population and rises up to 7 percent for the elderly. The cited literature highlighted that major causes of undiagnosed neuropathy were impaired glucose metabolism, chronic inflammatory demyelinating polyneuropathy (CIDP), and monoclonal gammopathies. The physician did clarify that the Veteran’s peripheral neuropathy is not caused by his neck fracture in 1997 because he has it in both upper and lower extremities and that neuropathy caused by a neck injury would only be present in upper extremities. The December 2019 VA examiner provided an addendum opinion in July 2020. She again opined that the upper and lower right and left peripheral neuropathy was less likely than not caused by the Veteran’s exposure to Agent Orange. The physician again cited to literature regarding idiopathic neuropathy and specifically stated that “sensory neuropathy in this Veteran could be caused by an un-identified factor or disease instead of herbicide exposure.” Sensory neuropathy can be caused by vertebral fracture, trauma, or severe osteoarthritis, but commonly presents as sensory and motor neuropathy, which may affect not only sensory, but also muscle strength. It is possible that sensory neuropathy is part of the symptoms due to his history of vertebral trauma, fracture, and osteoarthritis. The Board notes that the record contains conflicting medical opinions. The Veteran’s private physician provided a positive opinion on the basis that all diagnostic testing was negative for any common cause for peripheral neuropathy and that it was more likely than not that the Veteran’s peripheral neuropathy was caused by his exposure to Agent Orange. Alternatively, the VA examiner who provided the December 2019 opinion and July 2020 addendum opinion relied on literature to conclude that the Veteran’s peripheral neuropathy could be caused by un-identified factors or disease instead of herbicide exposure. Thus, the above evidence reflects that there is a competent, probative medical opinion of in favor of service connection for the Veteran’s upper and lower right and left peripheral neuropathy, and a competent, probative medical opinion against the claims. The evidence is therefore at least evenly balanced as to whether the Veteran’s upper and lower extremity peripheral neuropathy is related to service, to include exposure to Agent Orange. As the reasonable doubt by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for upper and lower extremity peripheral neuropathy is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.